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Perspective: Why precedent matters so much in this unprecedented Supreme Court leak

Decisions to overturn precedent pose a quandary for conservative justices

SHARE Perspective: Why precedent matters so much in this unprecedented Supreme Court leak

Illustration by Alex Cochran, Deseret News

A divided country anxiously awaited a blockbuster abortion decision from the nation’s highest court. The court’s decision would profoundly affect the lives of millions of women and millions yet unborn. Several weeks before the judgment was to be announced, its putative outcome was leaked to the press in an astonishing violation of someone’s duty and oath. The leak came as a bitter blow to champions of abortion rights. Protesters marched; demonstrators shouted; a divided nation divided further still.

The year was 1975; the place was Karlsruhe, Germany — a sleepy southwestern hamlet and home to the German Constitutional Court.

The previous year, West Germany’s Parliament had passed a law liberalizing abortions, effectively allowing abortion on demand during the first trimester of pregnancy. In a reversal of the usual American posture, the new law was quickly challenged before the Constitutional Court as a violation of the constitutionally guaranteed right to life. The leak suggested (rightly, it turned out) that a majority of the justices agreed with the law’s challengers. A few weeks after the leak, the court would strike the new law down.

Thanks to the unprecedented leak, the German abortion decision of 1975 was vociferously attacked even before it was formally announced. A central charge against the German court was that the justices had overstepped their bounds, had indulged in judicial activism, had reached beyond their role.

Contemporary Americans can relate.

In case you missed it: The U.S. Supreme Court, in a case called Dobbs v. Jackson Women’s Health Organization, is mulling whether to overturn Roe v. Wade, the 1973 decision that recognized (some say invented) a constitutional right to abortion. On May 2, Politico published a leaked version of a draft opinion by Justice Samuel Alito that would indeed reverse Roe and return control of abortion law to the states.

Cries that the court has run amok have sounded swift and sharp.

Some conservative voices have joined the critique. Writing in The New York Times, Bret Stephens opined that although Roe v. Wade was “an ill-judged decision” with pernicious social and political consequences, overturning it now would be “a radical, not a conservative choice.” Reversing Roe, Stephens suggests, would betray the conservative values of honoring established precedent and avoiding convulsive change.

Stephens is not alone. Much of the oral argument in the Dobbs case focused on questions about precedent and the principle of stare decisis — the idea that courts, including the Supreme Court, should “let stand” earlier, authoritative decisions. The court’s three liberal justices insisted vigorously that stare decisis requires sustaining Roe.

Stare decisis is an inherently conservative principle; it enjoins judges to conserve their predecessors’ work. But it also creates a conundrum for conservative jurists: what to do, for instance, if an earlier court has gotten something egregiously wrong — has flouted the text, history and structure of the Constitution; has overstepped the judicial role and usurped a legislative one? Must those earlier usurpations be frozen for all time? Must the court respect precedents that did not themselves respect precedent? Is it really radical to reverse the radicalism of one’s forebears?

The U.S. Constitution is famously (some think notoriously) hard to amend. And because Supreme Court decisions often serve in practice as the constitutional law of the land, those decisions sometimes effectively amend the Constitution. And those de facto amendments can often be altered only by future court decisions. In other words, it is often only the court that can amend the Constitution, and only the court that can amend its own earlier amendments.

Hence the conundrum for conservative judges committed to honoring precedent. Such judges tend to believe that the court should not amend the Constitution but should simply seek faithfully to apply it. Easier said, alas, than done. But what are they to do when they believe an earlier court has amended the Constitution?

To say that judges must invariably follow a precedent, even if they think it unilaterally amended the Constitution, is to suggest that jurists committed to precedent must unilaterally disarm — that they must enshrine the escapades of their predecessors even as they shun the adventurism of their peers. That is a lot to expect from mere mortals. And it is far more than the court’s actual precedents on precedent require.

The Supreme Court, as everyone knows, has often overturned itself — sometimes within the course of a very few years, sometimes after the passage of many decades. Decisions to overturn precedent should be taken with great caution and should be rare. But whether the court should reverse a precedent depends less on how old that precedent is than on how wrong it was. Stare decisis means nothing if it doesn’t require judges to uphold some rulings with which they disagree. But it means far too much if it requires judges to follow even the worst prior decisions, so long as they are old enough or have been often enough affirmed.

The justices have a lot to consider in deciding whether to reverse Roe — including the legal, institutional, social and political consequences that might attend such a ruling. But they must first consider whether (and how badly) Roe departed from our constitutional order, and whether our constitutional order can tolerate such a departure for another half century.

I have my views on that question — as, I am sure, do you. But it is striking how few critics of the leaked draft opinion have said anything about the rightness — or even the not-intolerable-wrongness — of the precedent they hope to save.

Furthermore, those accusing the conservative justices of untoward radicalism seem largely unaware that those justices, rightly or wrongly, see themselves as weighing whether to reverse the earlier radicalism of others. It is a peculiar kind of judicial activism that merely undoes earlier activism. And it is a strange kind of judicial usurpation that surrenders the power that earlier judges have usurped.

In any event, if the draft opinion ends up accurately predicting the outcome in Dobbs, some conservatives might be tempted to suggest that turnabout is, if not exactly fair play, at least a reality of a political life — and of a judiciary they believe others politicized first.

In one of the most devastating contemporary criticisms of Roe v. Wade, John Hart Ely, a liberal law professor then teaching at Yale, concluded that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”

Ely titled his essay, “The Wages of Crying Wolf.” The contemporary critics of a conservative court might soon learn a different lesson about those wages. What raw judicial power can grant, the same power can remove. One’s adversaries, alas, can cry wolf too.

Justin Collings is a professor at Brigham Young University Law School and a fellow at the Wheatley Institution.